Adopting the foregoing definition of the term" cutlery," and applying the general rule of construction above indicated, it follows that. the duty on sheep shears should be assessed at 35 per cent. ad valorem. There will be a judgment in this case in favor of the plaintiff.
WEDEMEYER and others V.LANCASTER, Surveyor, etc.
(Oircuit (Jourt, E. D. Mi88ouri, E. D. June 8,1887.)
CusTOMS DUTIES-SMOKERS' ARTICLEs-LAMPS.
Small lamps. such as are mainly, used for lighting pipes and. cigars, and are usuallvcamed in stock by those who deal in pipes and other articles of that 8ort, are "smokers' articles, II within' the' meanmg of that! term as used. in Schedule N ()f the tariff of and are chargeable a duty of 70 per cent. acha/Qrem.
At Law. Suit to recover excessive duties. John M. Holmes, for plaintiffs. 'J!homa8 P. Bashaw, for defendant. THAYER, J., (orally.) The question in this case is'\Vhether the duty on. a small pocket lamp, like this which I exhibit, should be 70 per cent. ad valorem, or 35 per cent. ad valorem. That depends upon whether it is a "smoker's article." My judgment, under the testimony, is that it is a "smoker's article." They are certainly used by smokers. They may be used at times for other purposes. I do not think, however, that to constitute an article within the meaning of the law "a smoker's article," it should be made to appear that it is exclUl5ively used by smokers. It is sufficient if the article is mainly so used. If it is an article that is usually carried in stock by those who ded in pipes, and other articles of that sort, it should be classed as a smoker's article. That it is mainly used for lighting pipes and cigars is evident. I think th/:l.t it is properly with a duty of 70 per cent. advalorem, Which was the duty imposed. '. In this case, therefore, judgment will be entered in favor of the defendant.
O'SULLIVAN and 71 other Irish Itntnigrants.
(OiJrcuit Oourt, 8. D. New York. June 14, 1887.) 1.
HnEAS CORPUS-SPECIAL TRmUNAL-COMMISSIONERS OF EMIGRATION-REVIEW OF PROCEEDINGS.
Upon habeaa CorPU8, the proceedings of a special tribunal may be inquired intO,80 far as to ascertain whether it has kept within the line of its authority and of its statutory pGwers. The act of August 8, 1882, does not authorize an immigrant to be detained for the purpose of being returned, unless, after examination, he is found by thll commissioners to be a" convict, lunatic, idiot, or person unable to take care of hiIriself becoming a public charge. " There is no authority to for· bid a'ftnaJ.landing, except upon a finding by the commissioners of sonie one ofthoB8 four facts, and a report of the facts to the collector. Payment of thepasBagll money by a foreign government is only 6'Didence of inability, not necessarily conclusive; and upon a traverse to the return on habeaa eorpU8, it being proved that the commissioners had not found or reported either of the abqve facts, and voted that the person "be not allowed to land," hefil in!lu¢cient; and the commissioners, upon opportunity given by the court for a further examination and report, not desiring to make any further examination,the immigrants were discharged.
ASSISTED bnlIGRANTS -DETENTION FOR RETURN-PAYMENT OF PASSAGE MONEY BY FOREIGN GOVERNMENT.
Habflu GnyuB. &:Ward, for petiticmers. W. W. R<noley, for the Board of Emigration.
petitioners, beingIrish immigrants, arBROWN,J; The rived at tlti$ port on the fourth of June, 1887, on board the City of Chester. They have been brought before the court upon a writ of habeas CorpU8, procured upon a petition averring that they are illegally detained by the cOmmissioners of emigration. The return to the writ states that they are held under the provisions of the act of congress of August 3, 1882, (22 St. at .Large, 214,) upon an order made by the commissioners on the ninth 'of June, after an examination into the circumstances of the immigrants, declaring that they were "likely to become public charges, and should not be allowed to land." Objection was made to the form of the the writ, in that neither the return, nor the order set up in it, states that the commissioners had found that anyone of the grants was "a convict, a lunatic, an idiot, or a person unable to take care of himself without becoming a public charge;" and it being suggested, in that this was a formal omission only, to be cured by amendment, relators thereupon put in a traverse, denying that any such order had been made by the board of commissioners, or that there any eXlJ,mination by the board such as is required by the has ute, or. any finding of either of the facts that is made by statute a legal cause oLdetention. Witnesses have accordingly been examined as to of the commissioners in respect to the nature of the examination made by the board, and whether the board on such examination pas founq,ol has reported to the collector, either of the facts upon which th,e statute authorizes the relators to be sent back.
The evidence of the commissioners and of the secretary of the board ohows that the Immigrants are healthy, able-bodied, and, ;in general, rather above than below the ordinary immigrants entering at this port; that the board has not made any finding that the immigrants detained, or any of them, were "convicts, lunatics, idiots, or persons unable to take care of themselves without becoming a public chargejU that the question chiefly discussed before them was the fact that their passage money to this country had been paid by the Britishg()verninentj that the board thereupon voted or resolved "that they benot allowed to landju and that their records show. no other finding or determination. It is competent for this court, and it is its duty, upon a writ of habea8 CorpU8, in inquiring into the cause of detention, to ascertain and to determinewhether a special tribunal in the exercise onts function!,! keeps within the limits of its statutory powerSj and to adjudge its proceedings void, if its action is in excess of its authority. So 10flg as the special tribunal acts within the powers conferred by statute, itiidetermination of the facts that are submitted to its judgment is final and conclusive, except upon some review specially authorized bylaw. commissioners are authorized by the act of August 3, 1882, to examine immigrants coming to this country, and to ascertain whether anyone "is a convict, lunatic, idiot, or a person unable to take care of himself or herself without becoming a public chargejU if so, they "shall report the same in writing to the collector of the port, arid such person shall not be permitted to )and. u This is the authority, and the sole authority, of the commissioners applicable to the present inquiry. They arer,equired to ascertain the fact as respects the four categories named; and, if they find any person within either category, they must report "the same" to the collectorj that is to say, they must ascertain and report thefnct, if any, that authorizes detention. It is only upon such a finding and report to thecollector that the law requires the persons to be sent back. The law has not authorized the commissioners, or any other officer, or t,his court, to say that these immigrants shall not land upon any other ground than Qne of the four above specified. ' . The evidence, upon the testimony of the commissioners themselves, leaves no doubt that the board did not make any finding upon either of the facts required. The resolution passed by the board was simply "that they be not allowed to land," without any finding or determination of any of the statutory facts authorizing detention. It has not been reported to the collector that anyone of these persons is "a convict, a lunatic, an idiot, or a person unable to take care of himself without becoming a public charge." It is only upon a report specifying some one ofthese findings that the final refusal of a landing is to be adjudged, and a return of the immigrants required. The evidence is that the only fact on , which the resolution of the board was based, was that the passage money for the immigrants had been paid by the British government. This fact is doubtless a proper and an important one to be considered in determining the question whether the immigrants are or are not "able to take care' Qf themselves without becoming a public charge i" but that fact alone
UNITED STATES 'IJ. O'CONNOR.
does not constitute inability to take care of themselves, nor is it necessarily conclusive evidence of it. Its force is as evidence only in respect to the ultimate fact which the commissioners are called on to decide, viz., whether these immigrants were" unable to take care of themselves;" and that question, it is clear from the testimony, the board has never yet determined. It is very plain, therefore, that no legal cause is shown for detaining the prisoners for the purpose of sending them back; because the board has not found anyone of the facts that are the legal conditions of the statutory inhibition. As the immigrants, however, are still in the custody of the commissioners, the board has still power to make a further examination in respect to the facts submitted to its determination by the statute. The · commissioners alone have the authority to determine these facts, upon a proper examination and finding. Such was the ruling of this court.,in the Case of Day, 27 Fed. Rep. 678. If the board, upon any proper amination, finds that the immigrants" are unable to take care of themselves without becoming a public charge," and so reports to the collector,' that is conclusive. If the commissioners, therefore, desire to make any finding or report upon this question, they are authorized to do so; and this proceeding will be suspended for that purpose, or the prisoners remitted to the custody from whence they were taken, until the lapse of a reasonable time for that purpose, as counsel may elect. Several of the commissioners being present in court, after a consultation among themselves with their counsel, it was stated to the court that they did not wish to make any further examination or finding; and thereupon the immigrants were discharged.
(DiBtriet Court, E. D. MiBs,uri, E. D. June 3, 1887.)
The third clause of section 5512, Rev. St., Irovides that "if at any registra· tion of voters for an election for a repre,entative or delegate in the congress of the United States any person knowingly personates and ngisters. or at· tempts to register. in the name of any person, whether liVing, dead, or fictitious. or fraudulently registers, or fraudulently attempts to register. not hav· ing a lawful right so to do. or does any unlawjul act to secure regiatrationjor himself. 0'1' any other person. * * * every such person shall be punished as prescribed in the preceding section." Held. on demurrer to an indictment under this section, that where a count charged, in effect, that, in order to secure registration for one B .· defendant wrote the name of said B. in the registration book, it would be inferred that said B. was a real and not a fictitious person. S. SAME-SECTION 5512, REv. ST.-"UNLAWFUL ACT "-SESS. LAWS Mo. 1883, PAGE 38. In an indictment under this section. the only unlawful act charged to have been committed by the defendant consisted in writing the names of various persons in the registration book while the same was in use for the purpose
ELECTIONS-EltAUDULENT REGISTRATION-INDICTMENT-SECTION 5512, REv.ST.